Asylum, Withholding of Removal and Convention Against Torture

Asylum

Asylum is available to a person who suffered past persecution or has a well-founded fear of persecution in their country on account of :

  • Race;
  • Religion;
  • Nationality;
  • Membership in a particular social group; or
  • Political opinion

This persecution must be by the government or by persons or organizations the government is unable or unwilling to control.

If past persecution is established, the U.S. government must show that conditions have changed in the country such that there is no basis for fear of future persecution, or that the person can avoid persecution by relocating to another part of the country.

Asylum must be applied for within 1 year of entering the U.S.  Exceptions to this 1 year limit are: changes in country conditions that place the person at risk of persecution; or extraordinary circumstances that caused the person to miss the 1-year deadline, such as post-traumatic stress, serious illness, disability or ineffective assistance of counsel.

If granted asylum, the person may apply to adjust status to LPR after 1 year.  The person’s spouse and child may also be granted asylum as derivatives.

Withholding of Removal

Withholding of removal is available to a person whose life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group or political opinion if he or she were removed to a country.  The person must prove his or her claim by demonstrating a clear probability of persecution if returned (more likely than not).

Once the person shows he or she suffered past persecution, it is presumed his or her life or freedom would be threatened in the country of removal on the basis of the original claim.  The U.S. government must then establish by a preponderance of the evidence that there has been a significant change in circumstances such that the person’s life or freedom would not be threatened on account of any of the five protected grounds, or that the person can avoid the feared persecution by relocating to another part of the country.

Unlike asylum, withholding of removal can be requested more than 1 year after entering the U.S.

However, a person who is granted withholding of removal cannot adjust status to LPR on that basis.  Also, there are no derivative benefits available to a spouse or child.  Thus, the spouse and child must individually request withholding of removal.

Withholding of Removal under the Convention Against Torture (CAT)

CAT relief is available for a person who establishes that it is more likely than not that he or she will be tortured by, or with the consent or acquiescence of, a public official.  Torture is severe physical or mental pain to obtain confession, for punishment, intimidation or any discriminatory reason.  For acts involving mental pain or suffering to be considered torture, they must be caused by or result from: (i) intentional or threatened infliction of severe physical pain or suffering; (ii) administration or threat of mind altering substances or other procedures to disrupt profoundly senses or personality; (iii) threat of imminent death; or (iv) threat that another will be subject to the acts in (ii) or (iii).

CAT can be claimed more than 1 year after entering the U.S.  There is no ability to adjust status to LPR based on a grant of CAT and no derivative benefits to a spouse or child.